Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Posts categorized "Forensics"

Thursday, 16 October 2014

Lawyers for Oklahoma death row inmates who filed a federal lawsuit seeking to block their executions have filed motions to hold the state's public safety commissioner and medical examiner in contempt of court for not turning over documents they have subpoenaed.

The motions were filed Wednesday against Commissioner of Public Safety Michael Thompson and Dr. Eric Pfeifer, chief medical examiner. They state documents the death row inmates' lawyers requested almost five months ago have still not been turned over.

Arguing that the state’s highest criminal court watered down a law designed to free innocent people from prison, a state senator vowed Wednesday to introduce, and pass, legislation allowing for expanded DNA testing of crime-scene evidence.

Sen. Rodney Ellis, D-Houston, said a February ruling by the Court of Criminal Appeals interpreted the 2011 law too narrowly, “making it difficult for folks to secure DNA testing that can prove their innocence and identify actual perpetrators.”

“This decision, respectfully, is out of touch with tremendous advances in science that we’ve made in regard to DNA testing,” he said.

In its February ruling, the appeals court unanimously denied DNA testing for death row inmate Larry Swearingen, ruling that his lawyers had not established that there was biological material on several items Swearingen wanted to test, including pantyhose used to strangle the victim, Conroe college student Melissa Trotter.

The ruling leaves inmates in a catch-22 — unable to get DNA testing unless they can prove the existence of biological material that cannot be revealed without testing, said Michael Morton, who was exonerated by DNA evidence in 2011 after 25 years in prison.

"The legislature has done a lot in recent years in regard to DNA testing to make sure the guilty are punished,” Democratic Sen. Rodney Ellis said. “And the innocent are free."

But Sen. Rodney Ellis says those efforts have seen a setback. A decision made by the Texas Criminal Court of Appeals earlier this year weakened the post-conviction DNA statute, denying death row inmate Larry Swearingen further DNA testing in his case.

"The legislature clearly understood this issue and why on earth would we execute a person without applying scientific DNA testing to determine whether that person was actually guilty,” Bryce Benjet with The Innocence Project said.

Monday, 15 September 2014

...[M]ounting evidence has shown that matching body wounds to a suspect’s dentition is prone to bias and unreliable.

A disputed bite-mark identification is at the center of an appeal that was filed Monday with the Mississippi Supreme Court. Eddie Lee Howard Jr., 61, has been on death row for two decades for the murder and rape of an 84-year-old woman, convicted largely because of what many experts call a far-fetched match of his teeth to purported bite wounds, discerned only after the woman’s body had been buried and exhumed.

The identification was made by Dr. Michael West, a Mississippi dentist who was sought out by prosecutors across the country in the 1980s and 1990s but whose freewheeling methods “put a huge black eye on bite-mark evidence,” in the words of Dr. Richard Souviron, a Florida-based dental expert who helped identify Mr. Bundy in 1979, in an interview last week.

Since 2000, at least 17 people convicted of murder or rape based on “expert” bite matches have been exonerated and freed, usually because DNA tests showed they had been wrongfully accused, according to research by The Innocence Project in New York. Dr. West was the expert witness in two of those cases.

Most importantly, the report does not explain why Attorney General Scott Pruitt was in such a hurry to kill Lockett and Charles Warner, who was scheduled to die the same night but had his execution postponed after the Lockett debacle. On the day of the execution, with the untested drug combination still a contentious public topic, Pruitt issued a flurry of press releases reassuring Oklahomans that the drugs would work as intended and that proceeding swiftly would be justice served, true to the people’s wishes. And in the way of politicians, much credit was taken for being the state’s faithful guardian of justice.

We do not expect an autopsy report to explain those things, but we do expect the attorney general to find the courage to be as visible in his apology as he was in his assurances about the execution. We would admire a public figure who would stand and say, “I was wrong. This must not happen again.”

Unfortunately, the pro-death bluster stopped about the time the window shade was drawn in the execution chamber. And we’ve heard nothing at all from those responsible since.

Oklahoma could release a report next week that details an investigation into the state’s execution protocols after the botched lethal injection of an inmate four months ago, a spokesman for Gov. Mary Fallin said Friday.

And:

Weintz’s statement Friday comes amid calls by some defense attorneys and civil rights groups to make the documents public for the sake of transparency.

“The autopsy report didn’t answer a critical question of what went wrong during Mr. Lockett’s execution, said assistant federal public defender Dale Baich, who represents death row prisoners.

Clayton D. Lockett, the prisoner whose prolonged writhing during his execution on April 29 led Oklahoma to suspend executions and caused national questioning of lethal injection methods, was killed by the injected drugs and not by a heart attack as state officials originally announced, according to a state-commissioned autopsy report released Thursday.

The report, prepared by the Southwestern Institute of Forensic Sciences in Dallas, which serves as the Dallas County medical examiner, did not explore what caused Mr. Lockett’s execution to go awry.

Its conclusion about the cause of death was not inconsistent, however, with the findings of an independent medical expert who examined the body on behalf of defense lawyers.

Those findings concluded that it was the inexpert placement of an injection line in Mr. Lockett’s groin that caused the lethal drugs to spread through local tissue, rather than coursing directly into the bloodstream.

But the report does not answer why the execution took so long and why Lockett writhed on the gurney.

Lockett's attorney, David Autry of Oklahoma City, did not immediately return a call seeking comment. But Dale Baich of the Federal Public Defender's Office in Phoenix, who represents a group of Oklahoma death row prisoners who commissioned an independent autopsy of Lockett, said more information is needed.

"What this initial autopsy report does not appear to answer is what went wrong during Mr. Lockett's execution," Baich said in a statement.

Oklahoma and other death penalty states have encountered problems in recent years obtaining lethal injection chemicals after major drugmakers stopped selling them for use in executions. That has forced states to find alternative drugs, purchased mostly from loosely regulated pharmacies that custom-make medications. Many states refuse to name suppliers and offer no details about how the drugs are tested or how executioners are trained.

Oklahoma put executions on hold after Lockett's April 29 execution.

Officials at the Oklahoma State Penitentiary in McAlester have said Lockett's vein collapsed during the lethal injection process. The autopsy does not say whether that's the case, though it does confirm that medical technicians poked him about 12 times as they tried to find a vein before settling on using one in his groin.

Records released Thursday provided few answers as to why and how Oklahoma’s execution of inmate Clayton Lockett went awry.

A Texas medical examiner’s autopsy of Lockett’s body after his botched execution found the inmate died “as the result of judicial execution by lethal injection.”

Autopsy results were released Thursday, nearly four months after Lockett’s execution April 29. Witnesses at the execution, including a Tulsa World reporter, described him as mumbling and writhing on the gurney after he had been declared unconscious by a combination of drugs Oklahoma had never used before.

The autopsy cites evidence on Lockett’s body that the execution team had difficulty starting his IV, taking about 45 minutes. It notes at least 14 needle marks and incisions showing multiple attempts to start an IV in his elbows, groin, neck, jugular and foot.

The autopsy does not summarize the findings of included toxicology tests or offer any judgment about whether Lockett received proper doses of midazolam, the drug used to anesthetize and sedate him.

The autopsy report provides no new insights on why Lockett took so long to die.

With the release of the autopsy report, a state investigation into Lockett’s execution is now moving into its final stages, said Michael Thompson, commissioner of the state Public Safety Department.

“Our investigative team has concluded well over one hundred interviews, collected evidence, reviewed reports and upon receipt of the autopsy report, will move into the final phase of completing a summary report of the findings,” Thompson wrote in a news release.

The investigation was initiated through an executive order by Gov. Mary Fallin. The governor called for an independent investigation, and therefore the autopsy was performed out of state.

The autopsy was conducted by the Southwestern Institute of Forensic Sciences, which is the crime lab of Dallas County, Texas, two days after the execution. The results and other documents involving the execution were released by the Oklahoma Department of Public Safety, which has been handling the governor's review.

Oklahoma public safety officials said they were in the “final stages” of investigating Lockett’s execution and were completing recommendations to improve the execution process before the state’s next scheduled procedure on Nov. 13.

The autopsy’s finding that Lockett died of the lethal drugs was notable because state officials initially said he died of a heart attack.

A separate, private preliminary autopsy had found that execution officials were unable to find a vein in which to inject the drugs. Officials then attempted to inject them through a femoral vein in Lockett's groin, but the IV was placed improperly, according to that autopsy by Dr. Joseph I. Cohen, a pathologist retained by the state's death row prisoners.

Though the report does not settle the question of how Lockett died, concluding only that the cause of death was “judicial execution by lethal injection”, it does underline the extraordinary lengths to which the execution team went in trying to kill him. It records evidence of 16 needle puncture marks in locations all over his body – from his upper chest and jugular region, to his upper arm, elbow pit, wrist groin and foot.

A more complete understanding of what went wrong in the 29 April execution may be given by the official inquiry into what happened that was ordered by Oklahoma’s governor Mary Fallin. The state has indicated that it will release the report within the next few days.

A sworn statement from a California anesthesiologist says that Dennis McGuire probably experienced “true pain and suffering” in his Jan. 16 execution, contrary to the opinion of Ohio prison officials.

“To a degree of medical certainty this was not a humane execution,” Dr. Kent Diveley, an anesthesiologist at Scripps Mercy Hospital in San Diego, said in an affidavit obtained for a lawsuit filed by McGuire’s family against the state.

Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville. It took more than 25 minutes for him to die after the drugs were administered. He was executed for the murder of 22-year-old Joy Stewart in 1989.

Diveley gave McGuire’s attorneys a three-page statement after examining the timeline of McGuire’s execution, the prison execution policy, and other documents. He did not examine the inmate’s body because he was cremated soon after the execution.

Diveley said hydromorphone is an “older narcotic used to treat pain.” The dosage of midazolam used by the state was far too low, he said.

“Neither of these drugs combined in the doses can be depended upon to produce a rapid loss of consciousness and death,” the anesthesiologist said. “It is possible when this combination of drugs is used for lethal injection there will be a delay of several minutes before the inmates loses consciousness preceding death.”

A condemned Ohio inmate put to death during a prolonged execution experienced pain and suffering before he lost consciousness, an anesthesiologist working for the family of the inmate determined in a report released Tuesday.

Neither of the drugs used to execute Dennis McGuire on 16 January can be relied on to produce a rapid loss of consciousness and death, according to the affidavit by Dr Kent Diveley of Scripps Mercy Hospital in San Diego.

A higher dose of the sedative used by Ohio is needed to render someone unconsciousness, Diveley said, while the painkiller used by the state causes eventual death from lack of oxygen but couldn’t be depended on to produce unconsciousness, he said.

“It is possible that when this combination of drugs is used for lethal injection there will be a delay of several minutes before the inmate loses consciousness preceding death,” Diveley said. He said apparent straining gestures by McGuire represented “conscious voluntary actions”.

“They exemplify true pain and suffering in the several minutes before he lost consciousness,” the affidavit said. “To a degree of medical certainty this was not a humane execution.”

Outrageous allegations of unethical or illegal gamesmanship in the prosecution of Cameron Todd Willingham, who was executed in 2004, need a thorough and transparent examination by the State Bar of Texas.

We applaud the Innocence Project for filing a grievance with the bar against the former prosecutor in the case, so the public may get a clearer picture of how the state secured and upheld this death sentence. The Willingham matter has become a symbol of Texas justice, with its many faults and excesses. Previous efforts to unmask the full truth have fallen short. It’s vital that the bar not allow questions to linger about the execution of this man in the deaths of his three young daughters.

In documents filed with the state bar last month, the Innocence Project alleges that former Navarro County District Attorney John Jackson cut — and has since denied — a secret deal with a drug-addled snitch witness to get him to testify that Willingham admitted setting the fire. The grievance also alleges that Jackson fudged records and interceded with state prison officials to get the witness favorable treatment after he was sent to the penitentiary on a robbery conviction.

A nonprofit group on Monday accused the prosecutor in the case of a Texas man executed for the fire deaths of his three daughters of trying to cover up a jailhouse informant’s recantation.

The New York-based Innocence Project, which investigates potential wrongful convictions, said it had filed a state bar grievance against John H. Jackson, a former prosecutor and judge who oversaw the case against Cameron Todd Willingham.

Willingham was executed in 2004 for killing his three daughters in a house fire in Corsicana. The project has long pursued Willingham’s case for evidence suggesting that Texas wrongfully executed him. State officials have maintained that they still believe he was guilty of murder.

Cameron Todd Willingham was executed on Feb. 17, 2004 after he was found guilty of setting a fire that killed his three young children in December 1991.

Now, nearly 22 years after his trial and 10 years after his death, a new report raises questions about a major piece of evidence against Willingham: his alleged confession to a fellow inmate that he had set the fire.

The case of Cameron Todd Willingham is a particularly striking example of the cavalier way in which the state of Texas – which has executed more than 500 people since the death penalty was reauthorized by the US supreme court in 1976 – administers the death penalty. Not only does the state to this day have essentially no evidence that Willingham committed the crime for which he was accused, it has no real evidence that a crime was committed at all.

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

While he was a reporter at the Chicago Tribune, Possley and Steve Mills first reported on the Willingham case in a 2004 Chicago Tribune series on junk science. The December 9, 2004 report was titled,"Man executed on disproved forensics."

Tuesday, 29 July 2014

Intravenous lines were placed correctly during the execution of an Arizona inmate whose death with lethal drugs took more than 90 minutes, a medical examiner said Monday.

Incorrect placement of lines can inject drugs into soft tissue instead of the blood stream, but the drugs used to kill Joseph Wood went into the veins of his arms, said Gregory Hess of the Pima County Medical Examiner's Office.

Hess also told The Associated Press that he found no unexplained injuries or anything else out of the ordinary when he examined the body of Wood, who gasped and snorted Wednesday more than 600 times before he was pronounced dead.

Sen. John McCain is backing off his widely publicized assertion last week that the extended lethal-injection execution of Arizona double-murderer Joseph Wood was "torture."

"I don't know if it's exactly 'torture,' " McCain, R-Ariz., said Monday in an interview with The Arizona Republic. "But let me put it this way: I don't believe it's humane. Rather than use 'torture,' I think I'd rather use the wording that it's not humane. And I think that most people would agree with that.

“I believe in the death penalty for certain crimes. But that is not an acceptable way of carrying it out. And people who were responsible should be held responsible,” he said in an interview. “The lethal injection needs to be an indeed lethal injection and not the bollocks-upped situation that just prevailed. That’s torture.”

Wednesday, 23 July 2014

The death penalty’s flaws have been well-documented. But a new report from the Justice Department’s Inspector General reveals some of the most troubling evidence yet, and provides a fresh reminder of why North Carolina and other states will forever be on shaky ground until they abolish it.

The FBI used flawed forensic evidence and overstated testimony by 13 lab examiners to help convict up to 64 murder suspects and put them on death row, the report said. Yet Justice and the FBI took five years to identify those suspects and delayed telling state prosecutors that it was reviewing the cases, so the states had no way of knowing that the convictions might be flawed.

At least three men were executed before a Justice Department task force fully reviewed those cases. In at least one, the defendant would not have been eligible for the death penalty without the FBI’s flawed work, the report said. (The Justice Department generally agreed with the report’s findings.)

Tuesday, 24 June 2014

The state has conducted autopsies on less than half of the inmates executed in Oklahoma since 1990 and, in many cases, does not perform tests that could show whether inmates were awake and paralyzed as painful drugs flowed into their veins, a Tulsa World investigation has found.

Because state records are inconsistent and blood is sometimes drawn long after inmates die, it is difficult to say how many inmates were conscious when they received potassium chloride, the third drug in Oklahoma’s lethal injection process. Medical experts, judges and attorneys for the state agree that potassium chloride is excruciatingly painful if given to a conscious person.

The World created a database using 109 medical examiner’s reports from Oklahoma inmates executed since 1990, including the levels of anesthetic in their blood following death where available. Experts in anesthesiology and clinical pharmacology reviewed the data to spot issues and problem cases.

A law that cloaks executions in secrecy and sparked a constitutional crisis in Oklahoma sailed through the state Legislature with scant debate.

When he introduced House Bill 1991 in 2011, then-Rep. Dan Sullivan described his legislation this way: “It changes the provisions as it relates to carrying out the death penalty. This is a request bill from the Department of Corrections and the Attorney General’s Office.”

“It doesn’t change who can witness the deal, does it?” one lawmaker asked.

Without further debate, House lawmakers passed the bill 94-0. In the Senate, where debates are not videotaped, the measure received three no votes.

The bill did change procedures for carrying out the death penalty, deleting specific language about the type of drugs that would be administered in lethal injections. However, the bill would have a far more sweeping impact because it also provided complete anonymity to execution participants and suppliers.

Ziva Branstetter and Cary Aspinwall talked about their reporting on Oklahoma's botched lethal injection, last night, on MSNBC's Rachel Maddow show. There is video at the link.

Rachel Maddow highlights reporting by the Tulsa World newspaper examining the extent of the dysfunction in the state’s death penalty system, including a crude means of communication with the executioners, poking colored pencils through a hole in the wall.

Monday, 23 June 2014

The state’s failure to require executioners to monitor inmates during the process or require them to receive any training is among serious flaws in Oklahoma’s lethal injection protocol, a Tulsa World investigation has found. When compared to policies in other active death penalty states, Oklahoma’s protocol falls short in key areas that could lead to more botched executions.

The World reviewed execution protocols or policies in Oklahoma and 19 other states that have carried out the death penalty since 2008 and compared each state’s requirements based on 10 factors that can affect the outcome of executions. While the death penalty is legal in 32 states and the federal government, 20 states have carried out an execution since 2008, records show.

The state’s vague requirements for training, qualifications of participating medical staff and procedures to check an inmate’s consciousness may have all played a role in the April 29 botched execution of Clayton Lockett. Preliminary results from an autopsy sought by defense attorneys indicate Lockett’s IV was not properly placed and cast doubt on the state’s claims that his vein “collapsed.”

State officials initially claimed he died of a massive heart attack, and that the problems with his execution were due to a “collapsed vein.” They ordered an investigation and an autopsy to be performed out of state, with Gov. Mary Fallin later declaring that Lockett’s 43-minute death simply “took too long.”

An independent autopsy requested by attorneys for other death row inmates revealed what many experts had suspected: There was no collapsed vein. The body revealed numerous failed attempts to start an IV. The IV likely never delivered the drugs properly.

The state of Oklahoma tried last month to execute a killer named Clayton Lockett, and badly botched it. Oklahoma’s preferred act of barbarism is with a lethal injection. As witnesses watched, the execution seemed to drag on before Lockett, who had been declared unconscious from the sedative injected to start the three-drug protocol, began writhing and struggling against the restraints holding him to the gurney. The curtain quickly came down, and a short while later, prison officials emerged to say that the execution was aborted because Lockett’s “vein exploded,” but that Lockett had died anyway of a heart attack.

It was a statement deserving skepticism at the time, and a preliminary autopsy report now confirms that skepticism was justified.

No veins exploded. The autopsy found that Lockett had “excellent integrity of peripheral and deep veins for the purpose of achieving venous access” for receiving the killing mixture. The execution squad just couldn’t figure out how to do it. The examiner found bruising, puncture wounds and “the presence of vascular injury indicative of failed vascular catheter access.” The examiner also tellingly reported an “inability to confirm that a primary cardiac condition played any role in Mr. Lockett’s death (i.e., a heart attack).” Which means he likely didn't have an existing heart condition that would have killed him.

Oklahoma executioners failed to place an injection line properly in a vein in the groin of Clayton D. Lockett, according to an independent autopsy commissioned by Mr. Lockett’s defense lawyers after his bungled execution drew wide attention to the problems of lethal injection.

The finding, released Friday, may explain why Mr. Lockett was not completely sedated, then writhed and moaned in apparent agony before dying of heart failure 43 minutes after the procedure began.

The finding contradicts the claim by Oklahoma prison officials that Mr. Lockett’s vein had collapsed or “blown,” as one described it. Instead, the new report indicates that Mr. Lockett’s femoral vein, located deep below the surface of the groin, was punctured by inexpert probing and that the execution drugs were not pumped directly into the bloodstream.

The team responsible for executing an Oklahoma inmate failed multiple times to insert an intravenous line into his body to deliver lethal drugs, even though the man's veins were in good condition, according to a private autopsy released Friday by attorneys for Oklahoma death row prisoners.

After the botched execution of Clayton Lockett, prison officials had said an IV specialist was unable to find suitable veins on his arms, legs or feet. Oklahoma executions typically involve IVs inserted into both arms. A doctor overseeing the April 29 execution suggested tapping a vein in Lockett's groin area, and said Lockett did not receive a full dose of the three lethal drugs after his vein collapsed.

But forensic pathologist Dr. Joseph Cohen said his preliminary findings indicate that Lockett had healthy veins, and it appears the execution team tried repeatedly to insert an intravenous line without success, including into deep veins on both sides of Lockett's groin.

And:

He said more information was needed to determine why Lockett died. Prison officials have said he died of an apparent heart attack. Results from the initial state autopsy are still pending, however, and toxicology reports haven't been released — so it's unclear how much of the drugs Lockett received.

Friday, 13 June 2014

The Oklahoma inmate who died during a botched lethal injection has perfectly healthy veins, a pathologist hired by defense lawyers says in a preliminary report.

Dr. Joseph Cohen performed an independent autopsy on Clayton Lockett, whose April 29 execution went so wrong that the White House condemned it.

Lockett, a rapist and murderer, died 43 minutes after the execution began and appeared to regain consciousness and writhe in pain midway through, according to media witnesses.

And:

“The improper placement of the IV used in Mr. Lockett’s execution is just one factor that caused his prolonged and painful death,” Megan McCracken, a lawyer with the Death Penalty Clinic at U.C. Berkeley School of Law, said in a statement.

She said a three-drug protocol being used for the first time in Oklahoma "exacerbated the pain and suffering that Mr. Lockett faced."

"Oklahoma Execution Team Failed to Place IV in Clayton Lockett’s Vein, According to Preliminary Findings of Independent Autopsy," is a news release issued this morning.

The Oklahoma execution team failed to set a properly functioning IV in Clayton Lockett’s femoral vein, according to preliminary findings released today of an independent autopsy conducted by forensic pathologist Dr. Joseph I. Cohen, M.D. The autopsy was performed in Tulsa, Oklahoma on May 14, 2014, following the botched execution of Mr. Lockett in Oklahoma City on April 29, 2014. Dr. Cohen was retained by attorneys for Oklahoma death row prisoners.

Despite the report’s findings that Mr. Lockett’s veins, both surface and deep, were in excellent shape “for the purpose of achieving venous access,” the execution team attempted to place the IV for the lethal injection execution into his femoral vein in the groin area, which is riskier, more difficult and more painful to place.

According to Dr. Cohen’s report, he found “skin punctures on the extremities and right and left femoral areas,” demonstrating that the execution team attempted to set IVs in both arms and both sides of Mr. Lockett’s groin. Dr. Cohen further found superficial and deep hemorrhages “indicative of attempted vascular access” and “the presence of vascular injury indicative of failed vascular catheter access.” The execution team’s attempts to insert the IV perforated the femoral vein.

Contrary to statements by the state, Mr. Lockett’s veins did not collapse or “blow out.” Rather, despite the excellent condition of Mr. Lockett’s veins, the execution team made numerous failed attempts to set an IV, eventually setting an improperly placed and ineffective IV in Mr. Lockett’s femoral vein. Dr. Cohen also notes the “unlikelihood” that dehydration could have played a role in compromising venous access.

There are serious questions about the training of the personnel who performed the execution. The Department of Corrections timeline states that the IV was set by a phlebotomist, which was confirmed by the Governor’s office, but when Tulsa World questioned the assertions, both state agencies reversed their positions and said it was an EMT, whose name has not been revealed. Oklahoma’s execution protocol allows for a central line, such as an IV to a femoral vein, only if set by a physician, not a phlebotomist.

“The improper placement of the IV used in Mr. Lockett’s execution is just one factor that caused his prolonged and painful death,” said Megan McCracken, an attorney with the Death Penalty Clinic at U.C. Berkeley School of Law. “The three-drug protocol that was used exacerbated the pain and suffering that Mr. Lockett faced by needlessly paralyzing him and subjecting him to the pain of potassium chloride. Moreover, the state had no plan for contingencies in the event that the execution did not go as planned, as clearly happened here.”

“Lack of transparency is a pervasive problem with execution procedures,” Ms. McCracken commented. “During Mr. Lockett’s execution, the Department of Corrections closed the blinds to the execution chamber so that the witnesses and press could not see what was happening for the 24 minutes leading up to the announcement that Mr. Lockett had died. Nothing is known about what happened during this timeframe, and it is one of many questions Dr. Cohen seeks answers to in order to complete his independent autopsy.”

The additional information that Dr. Cohen seeks includes:

• Documentation of tests and procedures performed by the State of Oklahoma’s Chief Medical Examiner’s office; • Autopsy, toxicology, histology and other reports generated by the Dallas County Medical Examiner’s office; • Oklahoma Department of Corrections’ policies and procedures pertaining to lethal injection executions;• Documentation pertaining to Mr. Lockett’s execution; • Mr. Lockett’s complete medical records and prison records; • Information about cell extraction, including use of physical restraint or use of electrical conductive devices. • Occurrence and treatment of injuries to Mr. Lockett prior to execution;• Records pertaining to the transport and storage of Mr. Lockett’s body following the execution.

“Dr. Cohen has begun a critically important inquiry into the botched execution of Clayton Lockett,” says Dr. Mark Heath, Assistant Professor of Anesthesiology at Columbia University and expert in lethal injection executions. “However, to complete this inquiry, Dr. Cohen will need the state to provide extensive additional information beyond what the body itself revealed. I hope that Oklahoma provides everything he asks for so that we can all understand what went so terribly wrong in Mr. Lockett’s execution.”

In February, I wrote about a Fifth Circuit decision rejecting the claims of a defendant who was convicted based on improbable testimony from the controversial medical examiner Steven Hayne. Over the course of about two decades, Hayne nearly monopolized Mississippi’s criminal autopsy referrals, performing 1,500-1,800 autopsies per year all by himself. Most of these were done for the state’s prosecutors. Hayne’s testimony was responsible for several convictions that later resulted in acquittals after a new trial, dismissed charges, or DNA exonorations.

I’ve been covering this scandal for the better part of a decade now. Hayne has been found to have given testimony completely unsupported by science, regularly worked with known charlatans like the discredited “bite mark expert” Michael West, and has been sharply criticized by colleagues for his improbable workload, sloppy practices, and dubious testimony. He has also been shown to have perjured himself about his qualifications. Despite all of this, and despite the fact that there are literally thousands of people in prison due in part or mostly to Hayne’s autopsies and testimony, neither state nor federal courts have shown any interest in determining just how much damage Hayne may have done to the criminal justice system of Mississippi (and to a lesser extent Louisiana). The Mississippi legislature hasn’t shown much interest. And state attorney general Jim Hood continues to defend Hayne. (Hood often used Hayne during his time as a district attorney.)

Monday, 03 March 2014

A Colorado judge ruled Friday not to delay the death penalty trial of a man accused of killing a prison guard, despite prosecutors' request for more time to respond to new questions about the suspect's original conviction.

Douglas County District Judge Richard B. Caschette denied District Attorney George Brauchler's request to postpone the trial of Edward Montour, who was serving a life sentence for the 1997 death of his 11-week-old daughter when prosecutors say he beat to death corrections officer Eric Autobee in 2002. He pleaded not guilty by reason of insanity, and prosecutors are seeking the death penalty. Opening statements are expected to begin next week.

Brauchler sought more time after defense attorneys announced during jury selection that they would call new witnesses who would testify that Montour's daughter, Taylor, suffered an undiagnosed bone disease, and her death was an accident. Caschette also refused to eliminate the new witnesses.

A decade ago, the state of Texas executed Cameron Todd Willingham after a trial in which an arson investigation and a jailhouse snitch named Johnny Webb seemed to prove Willingham had set a 1991 house fire, killing his three children.

Yet even before the trial began, doubts surfaced about the veracity of the arson report, which ultimately was discredited as abjectly incompetent. As for the witness Webb, the prosecutor at the time, John Jackson, insisted he had made no deal in return for Webb’s testimony, the kind of detail jurors need to know to weigh the veracity of a witness. In this case, Webb testified that Willingham, who maintained his innocence throughout, had confessed the crime to him in a jailhouse conversation.

It turns out Jackson may have lied about not having struck a deal with his witness. As The Times reported last week, the Innocence Project has unearthed a case file notation (Exhibit ZZ in this court filing) that suggests there had been a deal. The handwritten notation reads: “April says this was to be incl. offense of robbery 2nd — based on coop in Willingham.” Webb’s attorney was named April Silkes, and the reference is to a lower-level robbery charge against Webb than what he had been initially charged with. The now-retired Jackson, who went on to a career as a Texas judge, has been mum since the file surfaced.

In the 10 years since Texas executed Cameron Todd Willingham after convicting him on charges of setting his house on fire and murdering his three young daughters, family members and death penalty opponents have argued that he was innocent. Now newly discovered evidence suggests that the prosecutor in the case may have concealed a deal with a jailhouse informant whose testimony was a key part of the execution decision.

The battle to clear Mr. Willingham’s name has symbolic value because it may offer evidence that an innocent man was executed, something opponents of the death penalty believe happens more than occasionally. By contrast, Justice Antonin Scalia wrote seven years ago that he was unaware of “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Mr. Willingham was convicted on charges of setting the 1991 fire in Corsicana, Tex., that killed his three children, and was sentenced to death the next year. The conviction rested on two pillars of evidence: analysis by arson investigators, and the testimony of a jailhouse informant, Johnny Webb, who said that Mr. Willingham had confessed the crime to him.

The arson investigation has since been discredited; serious questions were raised about the quality of the scientific analysis and testimony, which did not measure up to the standard of science even at the time. But the prosecutor who led the case shortly before Mr. Willingham’s execution argued that even though the arson analysis had been questioned, the testimony of Mr. Webb should be enough to deny any attempt for clemency.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony.

Attorneys for the family of a man executed in Texas appealed to the governor and state parole board this week to reconsider the case in light of new evidence that he was wrongfully convicted of killing his three young daughters.

“It’s astonishing that 10 years after Todd Willingham was executed we are still uncovering evidence showing what a grave injustice this case represents,” said Barry Scheck, co-director of the New York-based Innocence Project assisting with the appeal. “The Texas clemency system is severely broken and must be fixed.”

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Thursday, 27 February 2014

A Douglas County judge's ruling on Wednesday bars the father of a slain corrections officer from telling a jury he doesn't want his son's killer executed.

More than 11 years after Edward Montour beat Eric Autobee to death, the Autobee family wants to spare Montour from the death penalty. On Feb. 13, Bob Autobee asked District Court County Judge Richard Caschette to allow him to ask the jury not to sentence Montour to death if he is convicted.

Late Wednesday, a trial judge in Colorado, a former prosecutor, issued a ruling that precludes the parents of a murder victim from telling jurors of their profound opposition to the imposition of a death sentence against the man who killed their son. The "appropriate audience" for the parents' complaints about the prosecution's use of "their son's name in the pursuit of the death penalty," the judge wrote in a footnote, is the prosecutor, who, of course, already has decided that the defendant should be put to death if found guilty.

Here is a link to the ruling by a district court judge that blocks Bob and Lola Autobee from providing jurors with the "victim impact" testimony they wish to provide on behalf of Edward Montour, the man who killed their son, Eric, who was a corrections officer. "The Court is unaware of any binding statutes or case law that would allow" the trial testimony that the Autobees seek, the judge ruled, although he will permit the family to testify as "mitigation witnesses." Specifically, the judge ruled that: "The Autobees may testify about the emotional impact of a death sentence or a life sentence... However, the Autobees will not be allowed to testify about what sentence the jury should impose."

How exactly this will play out in court—with the judge, prosecutor, and defense attorneys parsing what words the Autobees may use—is today impossible to predict. Can the Autobees tell jurors, for example, that a "death sentence" against Montour would have a terrible emotional impact upon them? Can they tell jurors that a life sentence without the possibility of parole for Montour would have made their son happy? By seeking to endorse a compromise here, the judge may have ended up with more trouble than he knows.

Less than a week before opening arguments are scheduled to begin in the death penalty case against an inmate who beat a corrections officer to death, prosecutors are asking the judge to eliminate several defense witnesses or postpone the trial.

More than 11 years after Edward Montour killed 23-year-old Eric Autobee, jury selection in his second trial began on Jan. 6. During jury selection, defense attorneys filed a motion asking the judge to hear new evidence they say proves Montour was wrongfully convicted in 1998 of killing his 11-week-old daughter, Taylor.

On Thursday, Douglas County District Court Judge Richard Caschette will hear arguments about Montour's 1998 conviction, whether more than a dozen defense witnesses will be allowed to speak at trial and if the trial will be postponed.

In an unprecedented move, the El Paso County Coroner's Office has amended the death certificate in the 1997 death of a twelve-week-old infant, changing the cause of death from "homicide" to "undetermined" -- dealing yet another blow to prosecution efforts to seek the death penalty for the infant's father, Edward Montour Jr., for the murder of a corrections officer at the Limon prison in 2002. And the man who sent Montour to prison for life for killing his daughter now says that new evidence has convinced him that the death could have been accidental.

There's little doubt surrounding the crime for which Montour is now facing trial: his fatal attack on corrections officer Eric Autobee twelve years ago. He pleaded guilty to first-degree murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury. The prosecution has since been mired in procedural delays, internal conflicts, and a highly public battle with Autobee's father, Bob, who opposes the death penalty and wants to address the jury in the case about why he doesn't think his son's killer should be executed.

Prosecutors hoped to use the fact that Montour was already serving life for a prior homicide as an aggravating factor in his current trial. But earlier this month, Montour's defense team filed a motion that he was wrongfully convicted of beating his daughter Taylor to death and shouldn't have been in prison in the first place.

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

And:

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen "cannot prove the existence of biological material" that could be tested. Although the defense presented to the district court expert testimony that biological evidence would "likely" be found on the pantyhose that is not enough to secure testing, the court ruled. "[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable."

In other words, without testing, there can be no testing.

The court's conclusion also precludes any testing of cigarette butts found near Trotter's body or of Trotter's clothes absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered "biological evidence per se" and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter's fingernails produced DNA from an unknown male.

The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.

Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.

James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.

Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.

Wednesday, 15 January 2014

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing.

Wednesday, 11 December 2013

That's the strong language in a dissent written by the Chief Judge of the 9th Circuit, Alex Kozinski. You can read the U.S. Court of Appeals for the Ninth Circuit ruling, and Judge Kozinski's dissent, in USA v. Olsen, in Adobe .pdf format.

The chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals is taking a stand against failure to disclose exculpatory evidence in a case involving a ricin suspect and a lab analyst who was later fired for alleged incompetence.

Chief Judge Alex Kozinski highlighted the issue in a Dec. 10 dissent (PDF) to the denial of an en banc rehearing. He begins this way: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” His dissent was joined by four other 9th Circuit judges.

The defendant in the case, Kenneth Olsen, was convicted of developing a biological agent for use as a weapon, Kozinski wrote in the dissent. Olsen had admitted developing ricin, but said he did so only out a curiosity and had no intent to use it as a weapon. To show intent, the government tested some allergy pills in Olsen’s possession and determined they also contained ricin. Olsen contended there was contamination by a Washington state lab analyst who admitted examining the pills before sending them to the FBI.

The lab analyst was being investigated by state police amid allegations that his work helped convict three inmates who were later exonerated. The resulting police report criticized the lab analyst for sloppy work that appeared to be “built around speed and shortcuts.” A federal prosecutor never informed the federal judge presiding over Olsen’s trial about the scope of the conclusions, though the report had been completed at the time and was awaiting approval by a state decision-maker.

Judges Harry Pregerson, Stephen Reinhardt, Sidney Thomas and Paul Watford joined Kozinski in a vigorous dissent to that ruling.

"Had Melnikoff been fully impeached, the only evidence from which the prosecutor could've proven Olsen's intent to use ricin as a weapon would have been a few Google searches and bookstore receipts," Kozinski wrote.

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice," Kozinski added. "It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

While Brady violations occur in all courts, Kozinski noted three recent cases in the 9th Circuit where the disclosure rule played a role, including United States v. Sedaghaty, Aguilar v. Woodford, and United States v. Kohring.

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities," Kozinski wrote. "The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Brady of course is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a decision released this week, the 9th Circuit court found extensive prosecutor misconduct on the part of Assistant U.S. Attorney Earl Hicks, who works for the Office of U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)

Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialist Arnold Melnikoff, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.

But at the time of the trial, Melnikoff was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly-chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."

AUSA Hicks knew about the investigation of Melnikoff, and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize is at as an "administrative" review that was limited to one case from 10 years ago.

"I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country," Kozinski wrote. "But it wouldn't be true."

For six Texans jailed in the 1990s, this season of thanks and cheer has become beyond joyous. Nineteen years after being charged with the sexual assault of two young girls, three women, now approaching middle age, emerged from the San Antonio county jail the week before Thanksgiving and, in a cascade of tears and laughter, fell into the arms of their families.

Days later, 63-year-old Fran Keller was released from prison after 21 years. When her ex-husband, Dan, 72, walked out of an Austin jail Dec. 5, she was waiting with open arms — the first time they had embraced since being convicted of sexually abusing children at their Austin day care center as part of satanic rituals in 1992.

The women, along with another on parole, and the Kellers have been professing their innocence in separate cases for almost two decades. Thanks to the nation’s first law recognizing advances in forensic science, they are out of prison with a chance at exoneration.

The San Antonio Four — Elizabeth Ramirez, now 39, Kristie Mayhugh, 40, Cassandra Rivera, 38 and Anna Vasquez, also 38 — are the first Texans to be released under a habeas corpus statute that took effect on September 1, allowing prisoners to seek release and a new trial if so-called “junk science” played a pivotal role in their conviction. Its enactment marks a sea change in a Texas penal system with a long-standing reputation for harsh, frontier justice.

Academy award-nominated filmmaker Al Reinert (Apollo 13 and For All Mankind) profiles a universal worst nightmare scenario of a man wrongly convicted of murdering his wife in the film AN UNREAL DREAM: THE MICHAEL MORTON STORY. The film will air for the first time ever on television at 9:00pm ET and PT on Thursday, Dec. 5 on CNN/U.S.

“We’re thrilled to bring this story to CNN audiences, raising awareness that the price of wrongful convictions goes well beyond individual loss of freedom for the wrongfully incarcerated” said Al Reinert, director of AN UNREAL DREAM.

Reinert’s award-winning documentary explores the harrowing true tale of Michael Morton, who stood accused and was convicted of the brutal murder of his young wife, Christine, in front of their three-year-old son, in 1986. Morton always maintained his innocence and was never connected to the horrific crime by either witnesses or physical evidence. As Morton spent nearly 25 years in the Texas penal system, he eventually lost all contact with his son Eric, who was raised by his wife’s relatives.

Throughout the film, Michael and Eric movingly describe their evolving estrangement. Michael Morton and other inmates also detail the pain of incarceration that Morton suffered unjustly for more than two decades – the relentless indignities, hard labor, desperate loneliness, and ever-present danger from other inmates. Morton describes the toughest blow as the day he learned his son had requested to be adopted by Christine Morton’s sister and her husband.

A man who has spent 28 years on death row and was once two hours away
from execution will get a new trial after the Florida Supreme Court
said Thursday that a retest of evidence makes it highly unlikely he
would have been convicted of a 1982 Daytona Beach murder.

Roy
Swafford was convicted of kidnapping, raping and killing gas station
attendant Brenda Rucker, who was slain Feb. 14, 1982. He was sentenced
to death in 1985. Five years later guards were preparing to shave his
head and a leg to ready him for the electric chair when a court halted
the execution.

The
Supreme Court said Swafford was convicted largely on testimony that
acid phosphatase, which is found in semen, was found on the victim,
though no sperm was found in the sample. When the evidence was retested
in 2005, neither acid phosphatase nor semen was found on the swabs.
Without evidence of a rape, it’s unlikely Swafford would have been found
guilty on any of the charges, the court said.

“The
State’s entire case was built around a theory that Swafford’s motive in
abducting and murdering the victim was to engage in a sexual battery
against her,” the ruling read. “If there was no sexual battery, then the
State’s entire theory of the case has been eliminated because the
State’s circumstantial case was premised on Swafford’s motive having
been the sexual battery. No witness, DNA, or fingerprints link Swafford
to the victim or the murder weapon.”

And:

“Swafford had a very limited time in which to kidnap the victim, take
her to a different location and sexually batter her, redress her, kill
her, and then move the body to the location where the body was found,”
the court wrote.

Evidence that another
person might have committed the murder was not used during Swafford’s
trial. A man named Michael Walsh and his car matched the description of a
person and car seen with the victim just before she was kidnapped.
Walsh dropped two friends off at a Laundromat a half block from the gas
station just before Rucker was kidnapped. He didn’t return until more
than four hours later and was sweaty, nervous and hyper, and later was
anxious to get rid of a gun that was the same type used in the murder,
according to witnesses.

Rigoberto Avila was in the living room of the small two-bedroom apartment on El Paso's west side watching a basketball game on TV when he looked up and saw 4-year-old Dylan Salinas standing in the hallway, looking frightened.

Avila, then 27, a former Navy man with no criminal record, was babysitting Dylan and the boy's 19-month-old brother, Nicholas Macias, at the request of the boys' mother, Marcelina Macias. Avila and Marcy, as she was known, had become friends less than a year before, while both were employed at Roto Rooter, and Avila, and sometimes his mother, helped Macias, then 25, care for her four children; Macias was studying for her GED and whenever he was free, Avila helped out. That's what he'd agreed to do the night of March 29, 2000. After Macias left the house sometime after 6pm, and the two young boys moved off to a shared bedroom to play (their older siblings were at a relative's house), Avila settled in to watch the game.

And:

Now, more than 12 years later, and with the aid of a newly passed, groundbreaking state law that allows for the reconsideration of convictions in which science – or so-called science – played a key role, Avila hopes that modern analysis done by physicists and doctors specifically trained in the mechanics of injury to children will help him finally to prove his innocence.

Nearly eight years after 1-year-old Angel Gabriel Moreno died
from a head injury, the conviction of the man sentenced to death in the
case has been overturned.

Manuel Velez was convicted of capital murder in October 2008 and
sentenced to death. Last June the Texas Criminal Court of Appeals threw
out that sentence, and Wednesday morning it overturned the conviction
and ordered Velez, and the case, back to Cameron County.

District Attorney Luis V. Saenz said his office is preparing to examine the case and determine how it will react to the ruling.

“What did the court find? Can we overcome what
the court found? And then we decide the answers to those questions and
we decide that depending on how strong we feel the case is, or how not
strong it is at this point. Then we make a decision as to what charge,”
Saenz said of re-trying Velez.

Angel Gabriel Moreno died after suffering head
injuries. The child was rushed to the hospital after Velez found he had
stopped breathing. Two days later, on Nov. 2, 2005, the child died.

The Texas Court of Criminal Appeals ruled
Wednesday morning that Velez’s defense attorneys during his 2008 trial
“failed to conduct an adequate investigation, and, as a result, failed
to present evidence at trial that supported defense.”

In 2012, that same court overturned Velez’s death
sentence but upheld his conviction. Lawyers with the American Civil
Liberties Union then sought a writ of habeas corpus, which challenged
the validity of his conviction and sentence.

Few people can comprehend the pain felt by the family of Cameron Todd Willingham, whose survivors recently stood with us at the Capitol to ask the state to investigate his wrongful execution.

And:

The state of Texas has acted admirably in the creation of the
Forensic Science Commission, which has critiqued the fire science in the
case; and the State Fire Marshal's Office has, in conjunction with the
Innocence Project of Texas, implemented a review of past arson cases
where convictions may have been based on similarly unreliable evidence.
Improvements also have been made in the judicial system with the passage
of the Michael Morton
Act, new requirements for DNA testing in death penalty prosecutions and
the creation of a new procedure to consider scientific evidence that
contradicts that which led to a conviction.

But the clemency process that failed to discover Willingham's
innocence in 2004 remains essentially unchanged. A recent study by a
committee of the American Bar Association found that the Board of Pardons and Paroles'
consideration of capital cases is woefully inadequate - Texas does not
meet any of the eleven minimum guidelines for an adequate process. This
is a gaping hole in the safety net against wrongful execution.

Although reasonable people can debate the effectiveness of the death
penalty or whether it is morally appropriate, no one can endorse a
system that allows the execution of an innocent person. And we need to
do everything in our power to make sure that the Board of Pardons and
Paroles, the last stop in our criminal justice system, has the resources
and the procedures necessary to do its job.

Tuesday, 08 October 2013

The Texas Board of Pardons and Paroles should investigate a new
application for posthumous pardon for Cameron Todd Willingham, who was
executed after being convicted of an arson-murder in Corsicana.

The
board may not be the best venue for analyzing this politically charged
case, and an inquiry might not produce the definitive result
Willingham’s family wants, but the festering questions aren’t going away
— nor should they.

The board should start by examining its own
role in rejecting a last-minute reprieve before Willingham’s execution
in 2004 and whether it properly served Gov. Rick Perry. The governor
should be concerned about whether his office and his appointed board had
all relevant information and gave it the attention it deserved.

Someone,
after all, briefed Perry before he proclaimed Willingham a “monster” in
2009 and said there was no doubt that Willingham set the 1991 house
fire that killed his three young daughters. Perry’s jarring statement
came during upheaval over the Texas Forensic Science Commission’s
decision to take up the case as its first investigation into the quality
of forensic work in Texas’ criminal justice system.

Today, we
know much more about the case against Willingham and the state’s
contention that it was an arson fire, as opposed to accidental. A
reasonable person would have clear reason for doubt, despite
Willingham’s background as a paint-sniffing two-bit thief with a
reputation for domestic violence.

Cameron Todd Willingham’s guilt or innocence should be a matter of evidence explored, not death penalty politics debated.

The
evidence thus far says faulty arson claims were used to convict the
Corsicana man for setting fire to his house and killing his three young
daughters. Prosecutorial misconduct also may have contributed to
Willingham’s conviction, according to evidence presented last week by
the Innocence Project.

The group
asked Gov. Rick Perry on Friday to order a state investigation into
whether Willingham was wrongfully executed in 2004 and should be
posthumously pardoned. The Innocence Project previously supported fire
research that led to a report by the Texas Forensic Science Commission
that discredited the arson claims used to convict Willingham.

Neither the discredited fire claims nor the possibility of wrongdoing
by prosecutors cited by the Innocence Project settles the issue of
Willingham’s guilt or innocence. Given the years that have gone by since
his conviction in 1992 and the circumstantial nature of much of the
rest of the case against him, producing a conclusive answer about
Willingham’s guilt or innocence might be impossible. But the time is
past due for the state to try to determine the truth.

Tuesday, 10 September 2013

Travis County prosecutors will not seek the death penalty when Cathy
Lynn Henderson is retried for the 1994 death of an infant she was
baby-sitting.

Henderson, who was once two days from execution for
the death of 3-month-old Brandon Baugh, will be tried for capital murder
and faces a potential sentence of life in prison, District Attorney
Rosemary Lehmberg said Monday.

“I
just think it’s best considering the evidence we have,” Lehmberg said.
“Considering what the jury will be hearing, I think that’s the wisest
decision.”

Henderson, now 56, claims Brandon died after slipping from her arms
and falling about 4 feet to the tile-on-concrete floor of her kitchen.
She said she panicked and buried the boy’s body in a Bell County field
before fleeing Texas.

And:

At her trial a year later, then-medical examiner Roberto Bayardo
testified that it was “impossible” to attribute the boy’s extensive head
injury to an accidental fall, saying it resembled a plunge from higher
than two stories. The only explanation, he said, was a deliberate and
forceful blow struck by Henderson.

But Bayardo recanted his testimony in 2007, providing defense lawyers
with a sworn affidavit saying that advances in the understanding of
pediatric head injuries found that relatively short falls onto a hard
surface could produce injuries similar to those he discovered during
Brandon’s 1994 autopsy.

Bayardo concluded that he could not determine if the boy’s injuries
were the result of “an intentional act or an accidental fall.”

Monday, 09 September 2013

When Iris Morgenstern, an English teacher, remembers her former student Robert Avila, she pictures the towering El Paso teen squeezing a tiny dropper of food into the mouth of a scrawny newborn kitten.

“Robert is just a really gentle, kind soul,” she said.

That is why, more than a decade after he was convicted of stomping to death his girlfriend’s 19-month-old son in a fit of jealousy, she still cannot believe that he is facing execution. Now, after years of fighting to prove his innocence, Ms. Morgenstern and Mr. Avila’s legal team hope a new law will give the death row inmate a chance for a new trial and the opportunity to prove his innocence.

In the last legislative session, in the wake of dozens of exonerations in recent years based on advances in forensic science, Texas lawmakers approved Senate Bill 344. The first law of its kind in the nation, it allows courts to grant defendants new trials in cases in which forensic science has evolved. On Friday, Mr. Avila’s lawyers filed a motion under the new statute arguing that recent developments in biomechanical science that were unavailable at the time of their client’s 2001 trial indicate that Nicholas Macias’s death may have been the result of an accident.

But Jaime Esparza, the El Paso County district attorney, said he was not convinced that the jury’s verdict, based on scientific testimony and a signed confession, was wrong. On Wednesday, a judge will hear arguments from both sides as Mr. Avila’s lawyers seek the withdrawal of his January 2014 execution date to allow time for full consideration of his claims under the new law.

And:

State Sen. John Whitmire, D-Houston, the chairman of the Senate’s Criminal Justice Committee, wrote the bill. He said he has watched for years as cases have been overturned that were based on outdated arson theories, bogus dogsniffing evidence and inaccurate evaluations of brain injuries that were thought to have resulted from shaken baby syndrome.

“We should always be certain, obviously in more extreme cases of the death penalty being the outcome, that you have the right person,” Whitmire said.

Texas Defender Service has issued a news release, "Groundbreaking Law Provides Avenue for Newly Available Scientific Evidence to be brought before Court; Death Penalty Case First to Test New Law." Here's the full text of the release:

EL PASO, TEXAS - This week, Rigoberto “Robert” Avila, who is scheduled to be executed on January 15, 2014, will ask the Texas Court of Criminal Appeals to order an evidentiary hearing under a groundbreaking new Texas law, Senate Bill 344, to consider newly available scientific evidence that suggests he is innocent. Mr. Avila’s case will be the first death penalty case in the state to be considered by the courts under this new legislation which allows access to the courts for defendants challenging their convictions based outdated forensic techniques.

Mr. Avila was convicted of causing the tragic death of a nineteen-month old child in his care in El Paso in 2001. He has consistently maintained his innocence over the past twelve years. Newly available scientific evidence has come to light that strongly points to Mr. Avila's innocence.

Attorney for Mr. Avila, Cathryn Crawford of the Texas Defender Service (TDS), says the legislature and Gov. Perry passed SB 344 to create an avenue for defendants to challenge their convictions if they were gained through outdated forensic techniques.

“When passing the law, legislators specifically mentioned its application to infant death cases,” says Crawford. “My client, Mr. Avila, is a prime example for its existence.”

Texas Defender Service argues that before Texas proceeds with the execution of Avila, he should be granted the opportunity to present a biomechanical analysis of the cause of death and the testimony of a forensic pathologist. If the court orders an evidentiary hearing, it will become clear that today’s science shows that this case involves the tragic, accidental death of an infant.

Dr. Janice Ophoven, a pediatric forensic pathologist, agrees that Mr. Avila’s conviction should be re-examined in light of this newly available evidence, “The field of biomechanics is an essential framework that must considered by the court in Mr. Avila’s case.”

In addition to the newly available scientific evidence, which strongly points to Mr. Avila’s innocence, Crawford argues that the case also contains serious flaws that call into question the integrity of the conviction, namely Mr. Avila’s false confession and the questionable testimony of the 4-year old brother.

Professor Steven Drizin, Assistant Dean of the Bluhm Legal Clinic at Northwestern University School of Law and staff attorney at the Center on Wrongful Convictions, says that the signed confession in Mr. Avila’s case contains many of the hallmark problems he has seen in wrongful convictions in which the innocent person confesses to the crime. “False confessions are a tragic but common phenomena and justice requires that we be critical of confessions when they are secured using improper techniques and, mostly importantly, when the case has scientific evidence that points to likely innocence,” says Drizin. “Both of these factors exist in Mr. Avila’s case, which greatly calls into the question the validity of his alleged confession.”

Additionally, Mr. Avila's conviction rests partly on the testimony of the infant’s four-year-old brother. Dr. Maggie Bruck, child psychologist in the Division of Child and Adolescent Psychiatry at The Johns Hopkins Hospital comments that, “the child’s statements at trial are inconsistent, contradictory, and the result of highly pressurized interviewing techniques.” Crawford adds that, “child psychologists, and common sense, suggest that a death sentence cannot rest on statements made by a suggestible and grieving child.”

After the El Paso trial court certifies the petition this week, Texas Defender Service will deliver copies of an application for writ of habeas to the Texas Court of Criminal Appeals (CCA), asking that the CCA to allow Mr. Avila to present the evidence in an evidentiary hearing in the trial court.

“The State of Texas cannot proceed with an execution without considering legitimate and persuasive claims of innocence,” comments Crawford. “There is no room for uncertainty when it comes to the ultimate punishment.”

In January, the New York City medical examiner’s office confirmed
that it was reviewing more than 800 rape cases from a 10-year period
during which DNA evidence may have been mishandled by a lab technician
who resigned in 2011 after an internal review uncovered problems with
her work.

The review, then about half complete, had already turned up 26 cases
in which the former technician failed to detect the presence of DNA
evidence, including one in which the evidence has since led to an arrest
in a 10-year-old rape case. The review uncovered 19 cases in which DNA
evidence was commingled with DNA evidence from other cases.

A month earlier, a former chemist at a now-shuttered state drug lab
in Boston was indicted on 27 counts of obstructing justice, tampering
with evidence, perjury and other charges in connection with her handling
of some of the tens of thousands of drug cases she worked on during her
nine years there. “Little Annie” Dookhan is accused of faking test
results, intentionally contaminating and padding suspected drug samples,
forging co-workers’ signatures on lab reports, and falsely claiming to
have a master’s degree in chemistry.

The ongoing investigation into her work—which could upend thousands
of drug convictions—has already led to the closing of the lab, the
release of hundreds of convicted drug offenders, and the termination of
one lab official and resignation of another. It also led to the
resignations of state Public Health Commissioner John Auerbach, whose
office oversaw the lab, and Norfolk Assistant District Attorney George
Papachristos, who was found to have had an inappropriately personal
(albeit not romantic) relationship with Dookhan.

A few months before that, the St. Paul, Minn., police department’s
crime lab suspended its drug analysis and fingerprint examination
operations after two assistant public defenders raised serious concerns
about the reliability of its testing practices. A subsequent review by
two independent consultants identified major flaws in nearly every
aspect of the lab’s operation, including dirty equipment, a lack of
standard operating procedures, faulty testing techniques, illegible
reports, and a woeful ignorance of basic scientific principles.

Thursday, 05 September 2013

The assessment is conducted by a state-based team responsible for
collecting and analyzing various laws, rules, procedures, standards, and
guidelines relating to the administration of capital punishment in
Virginia. It is the Virginia Assessment Team’s responsibility to
determine whether the state is in compliance with the ABA Protocols
and make any other additional recommendations it feels are needed to
improve the fairness and accuracy of Virginia’s death penalty system.

A panel of legal experts says Virginia lawmakers should make several
changes to ensure fairness and accuracy in the state's death penalty
system.

The Virginia Death Penalty Assessment Team announced results of its
two-year study Thursday in Richmond. The study is part of an American
Bar Association initiative to examine procedures in a dozen states that
have capital punishment.

The panel says one of the biggest problems in Virginia is an overly
restrictive state appeals process. It recommends giving inmates more
time to appeal and providing funding for their lawyers to hire experts.

A two-year study of Virginia’s death
penalty to improve fairness and accuracy calls for safeguards in the use
of suspect lineups and more access by defense lawyers to information to
help them prepare cases.

The recommendations are among more than a dozen in the study
sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty
Assessment Team is to require law enforcement agencies to adopt the
Virginia Department of Criminal Justice Services’ model eyewitness
identification policy for suspect photo and live lineups.

Misidentification played a role in the wrongful
convictions of 18 Virginians later proven innocent in non-death penalty
cases. Although the model policy was released in 2011, a recent survey
by the University of Virginia Law School found few police departments
had adopted it.

According to the Virginia department of
Corrections, Virginia has executed 110 killers – 31 by electrocution and
79 by lethal injection since the U.S. Supreme Court allowed capital
punishment to resume in 1976.

The toll is second nationally only to Texas,
which has executed 503. But in Virginia three out of four persons
sentenced to death since 1976 have been executed -- a higher rate than
even in Texas, which has carried out roughly half its death sentences.

And:

The assessment team was chaired by John Douglass, a former federal
prosecutor and dean of the University of Richmond Law School where he
still teaches.

The panel also included Richmond Commonwealth's
Attorney Michael Herring, who won a death sentence against Ricky Gray;
Mark L. Earley, a former Virginia attorney general whose office defended
many death sentences on appeal; and Craig Cooley, a Richmond lawyer who
has represented clients in 70 capital murder trials including Lee Boyd
Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death
penalty Assessment project which since 2003 has studied and reported on
the death penalty in 10 other states.

Lawyers for death row inmate Hank Skinner
say the latest round of DNA testing in the 1993 triple murder he was
convicted for show that someone else likely committed the crime.

“In light of this latest round of DNA tests, supported by other
exculpatory evidence, the doubts about Mr. Skinner’s guilt are far too
substantial to allow his execution to proceed,” Douglas Robinson, an
attorney for Skinner, wrote in an email.

But lawyers with Texas Attorney General Greg Abbott’s office argue that the same test results only reinforce Skinner’s guilt.

“The new round of testing does nothing to vindicate Hank Skinner in
the murder of Twila Busby,” said Jerry Strickland, an Abbott spokesman.

And:

Prosecutors agreed
to allow the DNA testing in June 2012, and on Aug. 6, lawyers received
the results of a third round of tests — analysis of mitochondrial DNA on
four hairs found on Busby’s hands. One of the hairs belonged to
Skinner, which his lawyers say is unremarkable because he lived in the
home where the killing occurred. The other three hairs came from the
“maternally-related line of persons that included the victims.” A
previous examination of those hairs indicated they weren't from the
victims.

The testing on the hairs, Skinner’s lawyers argue, aligns with their
contention that the killer was likely Busby’s maternal uncle, who they
allege had a history of violence and had been making unwanted sexual
advances toward her the night of the crime.

Attorneys for convicted triple killer Henry Skinner
on Thursday told a Texas Panhandle court that mitrochondrial DNA
testing of hairs in one victim's hand supports their contention that
their client is innocent.

In an advisory to Pampa's 31st District Court, lawyer Rob Owen reported that three hairs found in the hand of Twila Busby,
who was bludgeoned to death in the home she shared with Skinner,
belonged to a maternal relative of the victims. Earlier state testing
showed the hairs did not come from Busby or her sons, Edwin Caler and Randy Busby, who also were killed.

A fourth hair, Owen conceded, came from Skinner.

Owen argues that the test results "support the inference that Robert Donnell,
a maternal relative of the victims and the man who stalked Ms. Busby
and frightened her with crude sexual advances less than an hour before
she was murdered, committed the crimes." Donnell since has died.

New DNA evidence could help exonerate a man on death row in the US
state of Texas for the murder of his girlfriend and her two adult sons,
his lawyers claimed Thursday.

Hank Skinner, 51, has been on death row for 20 years over the 1993 triple murder. He has always denied the charges against him.

A
private Virginia laboratory on Thursday published the results of tests
conducted on four hairs found in the hand of the slain woman, Twila
Busby -- and three of them show a family link with the three victims.

The fourth belongs to Skinner -- a result the lawyers called "unremarkable," given that the accused lived in Busby's house.

"The
doubts about Mr. Skinner's guilt are far too weighty to allow his
execution to proceed," said his attorneys, Robert Owen and Douglas
Robinson.

Independent
testing done by Skinner's defense team allegedly identifies a relative
of one of the murder victims as a possible suspect.

Skinner says a
man named Robert Donnell, an uncle of victim Twila Busby, could be
guilty of the triple murders that sent him to death row.

In an
advisory filed with the court Thursday, Skinner's attorneys say their
testing shows three hairs found in the hand of Twila Busby belong to a
maternal relative, implying Donnell may have been at the scene.They concede a fourth hair belongs to skinner.

A North Carolina man says he's excited about being released after spending 20 years behind bars for a homicide he didn't commit.

A judge last week vacated Larry Lamb's 1993 murder conviction, and prosecutors dismissed the charges Tuesday, said one of Lamb's attorneys, Christine Mumma of the North Carolina Center on Actual Innocence.

A man imprisoned for more than 20 years for the murder of a Duplin County bootlegger was released Tuesday evening from the Wake Correctional Center in Raleigh.

A judge on Thursday ordered that Larry Lamb be exonerated in the fatal shooting of Leamon Grady, who was robbed and found dead in his home in 1987. On Tuesday, the Duplin County District Attorney's Office dropped the charges against Lamb, clearing the way for his release.

North Carolina’s State Bureau of Investigation and its insurers have agreed to pay $12.475 million to two innocent men who spent a total of 31 years behind bars.

The state agreed to pay $7.85 million to settle the state lawsuit filed by Floyd Brown, a mentally disabled man locked up for 14 years in a psychiatric hospital based on what his lawyers said was a false confession created out of whole cloth by an SBI agent. Brown has also reached a separate settlement with Anson County, whose sheriff’s deputies helped investigate the case. A federal judge has sealed the Anson County settlement; North Carolina law requires that all such court settlements be public records.

The state also agreed to pay $4.625 million to Greg Taylor, a Wake County man convicted in 1993 for the murder of a woman found beaten and abandoned in an East Raleigh cul-de-sac. Taylor spent 17 years behind bars before a three-judge panel declared him innocent in 2010, the first such exoneration by an independent innocence commission in the United States.

The settlements are not the first large payouts stemming from SBI misconduct.

Monday, 12 August 2013

Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

Thursday, 25 July 2013

Today's New York Times publishes the OpEd, "High-Tech, High-Risk Forensics," by Osagie K. Obasogie. He is a professor of law at the University of California, Hastings. Here's the beginning:

WHEN the police arrived last November at the
ransacked mansion of the millionaire investor Raveesh Kumra, outside of
San Jose, Calif., they found Mr. Kumra had been blindfolded, tied and
gagged. The robbers took cash, rare coins and ultimately Mr. Kumra’s
life; he died at the scene, suffocated by the packaging tape used to
stifle his screams. A forensics team found DNA on his fingernails that
belonged to an unknown person, presumably one of the assailants. The
sample was put into a DNA database and turned up a “hit” — a local man
by the name of Lukis Anderson.

Bingo. Mr. Anderson was arrested and charged with murder.

There was one small problem: the 26-year-old Mr. Anderson couldn’t have
been the culprit. During the night in question, he was at the Santa
Clara Valley Medical Center, suffering from severe intoxication.

Yet he spent more than five months in jail with a possible death
sentence hanging over his head. Once presented with Mr. Anderson’s
hospital records, prosecutors struggled to figure out how an innocent
man’s DNA could have ended up on a murder victim.

Late last month, prosecutors announced what they believe to be the
answer: the paramedics who transported Mr. Anderson to the hospital were
the very same individuals who responded to the crime scene at the
mansion a few hours later. Prosecutors now conclude that at some point,
Mr. Anderson’s DNA must have been accidentally transferred to Mr.
Kumra’s body — likely by way of the paramedics’ clothing or equipment.

This theory of transference is still under investigation. Nevertheless,
the certainty with which prosecutors charged Mr. Anderson with murder
highlights the very real injustices that can occur when we place too
much faith in DNA forensic technologies.

Wednesday, 24 July 2013

The fallibility of the criminal justice system in applying the death penalty has been demonstrated again this month.

The
Federal Bureau of Investigation announced last week its review of old
criminal cases has found as many as 27 death penalty convictions that
might have been based on invalid scientific testimony.

The review
was announced a year ago by the FBI after three men were exonerated by
DNA testing. Their convictions had been based in part on testimony on
hair analysis from FBI lab experts.

In May, the review led to an 11th-hour stay of execution in a Mississippi double homicide case.

At issue is trial testimony from FBI experts that the organization now says “exceeded the limits of science.”

And:

The decline in death penalty support also is found among conservatives.

That
shouldn't be surprising. After all, a distrust of government and a
desire to limit the power of the state are fundamental to the
conservative credo.

It should be natural for conservatives to be
reluctant to give the state the ultimate power to take an inmate's life.
When the state mistakenly executes the wrong person, there's no
possibility to reverse the sentence.

The FBI review of hair
analysis cases is another demonstration of how prone the death penalty
system is to error. The Legislature should take that into account the
next time it considers whether to add Nebraska to the growing list of
states that have repealed the death penalty.

Thursday, 18 July 2013

An unprecedented federal review of old criminal cases has uncovered
as many as 27 death penalty convictions in which FBI forensic experts
may have mistakenly linked defendants to crimes with exaggerated
scientific testimony, U.S. officials said.

It
is not known how many of the cases involve errors, how many led to
wrongful convictions or how many mistakes may now jeopardize valid
convictions. Those questions will be explored as the review continues.

The
discovery of the more than two dozen capital cases promises that the
examination could become a factor in the debate over the death penalty.
Some opponents have long held that the execution of a person confirmed
to be innocent would crystallize doubts about capital punishment. But if
DNA or other testing confirms all convictions, it would strengthen
proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose
its first results later this summer. The death row cases are among the
first 120 convictions identified as potentially problematic among more
than 21,700 FBI Laboratory files being examined. The review was announced last July
by the FBI and the Justice Department, in consultation with the
Innocence Project and the National Association of Criminal Defense
Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by
FBI hair examiners may have led to convictions of potentially innocent
people, but officials had not aggressively investigated problems or
notified defendants.

At issue is a once-widespread practice by
which some FBI experts exaggerated the significance of “matches” drawn
from microscopic analysis of hair found at crime scenes.

The Florida Supreme Court has ordered a new trial for a man sentenced to death for a 1996 fatal stabbing in Pasco County.

The court unanimously upheld a lower court's 2010 decision Thursday
to grant a retrial to 51-year-old Michael Peter Fitzpatrick. Justices
found that Fitzpatrick had ineffective help from his trial attorney, who
should have consulted with experts on the DNA and other forensic
evidence used against him.

In two courts, half a country apart, judges last month grappled with the reliability of testimony and forensic hair evidence analysis that Federal Bureau of Investigation agents provided in criminal trials decades ago. John Norman Huffington, imprisoned nearly 32 years in Maryland, had his conviction overturned by a judge after DNA testing revealed that the hair that was presented as key evidence against Mr. Huffington did not belong to him. Willie Jerome Manning, mere hours from death, won a stay of execution from the Mississippi Supreme Court to give his lawyers time to conduct DNA testing, which they believe could exonerate him. FBI testimony in both cases provided key evidence that led to their convictions.

Most of us are aware of the need for accurate and scientifically reliable evidence to ensure that those guilty of crimes are convicted and properly sentenced, and that those wrongfully convicted are exonerated. In Mr. Huffington's trial for the 1981 murders of two people in Harford County, at a time when DNA testing was not yet available, an FBI agent testified that the microscopic hair analysis was 99.98 percent accurate in determining that hair found in the bed where one victim was killed belonged to Mr. Huffington. This April, DNA testing revealed that the hair samples were in fact not his. In overturning his conviction and ordering a new trial, the judge noted that "due to the substantial weight given to the microscopic hair analysis by the jury … as well as the results of the DNA test [directly contradicting the FBI agent's testimony] … there is a significant possibility that the outcome of [Mr. Huffington's] case may have been different."

In Mr. Manning's trial for the 1992 murders of two college students, an FBI agent testified that microscopic hair analysis could identify a hair sample as belonging to Mr. Manning, to the exclusion of all others. Mr. Manning was convicted in 1994, in part based on the FBI agent's testimony. But such testimony, as a U.S. Department of Justice review found, "exceeded the limits of the science," and therefore the testimony was erroneous and "invalid." Had DNA testing (relatively new at the time) been performed on the hair sample, we would have had far greater certainty about the outcome in Mr. Manning's trial.

These are two examples among the potentially thousands of cases in which the reliability of FBI forensic analysis and testimony, particularly microscopic hair analysis, has been called into serious doubt.

The photo of Gov. Rick Perry
signing legislation that diminishes the chances of wrongful convictions
in Texas is rich in irony. More important, it projects an indelible
sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham,
who also points to the unfinished work. Those intimately familiar with
Texas' criminal justice history can tell you that Willingham, even more
than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in
prison after being convicted in the beating death of his wife. The
prosecution withheld evidence that would have cleared him. Thanks to the
work of the New York-based Innocence Project, Morton was exonerated by
DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on
the strength of highly flawed arson evidence for the deaths of his three
daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton
and legislators. The irony: a report discrediting the evidence used to
convict Willingham came across that desk or one similar in plenty of
time for Perry to have spared Willingham's life.

Wednesday, 03 April 2013

State District Judge Elia Cornejo Lopez has recommended Brownsville resident Manuel Velez, who was convicted of murdering a toddler, get a new trial. Lopez issued the order Tuesday.

Velez had been convicted of killing 1-year-old Angel Gabriel Moreno in October 2008. He received the death sentence.

“After a thorough and critical review of the evidence presented, Judge Lopez found that Mr. Velez’s trial counsel was ineffective for, among other reasons, failing to investigate and present medical evidence exculpating Mr. Velez,” said pro bono attorney Tami Goodlette. “She further concluded that this and other failures undermine confidence in the jury’s verdict.”

Velez was convicted and sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence last June because expert witness testimony on future dangerousness of the defendant was deemed inaccurate.

In Lopez’s ruling, she wrote that a new trial should be granted because of ineffective assistance of counsel.

“Mr. Velez has now shown that, at the time of his 2008 trial, compelling medical evidence was available to refute the theory on which he was convicted,” Lopez wrote in her finding. “His trial counsel, Hector Villarreal and O. Rene Flores, inexplicably failed to develop and present to the jury this exculpating evidence. These failures were not the result of sound trial strategy.”

In December, Velez appeared before Lopez for an evidentiary hearing to determine whether Lopez would or wouldn’t recommend a new trial for him.

During that hearing, pro bono attorneys said there is no evidence that Velez struck the child and said new medical evidence shows the child sustained the injuries that killed him while Velez was out of town, working in Memphis, Tenn.

After conducting hundreds of tests on samples of blood, hair, sperm,
fingernail clippings and other crime scene evidence, prosecutors in the
Texas attorney general's office and lawyers for death row inmate Hank
Skinner have signed an agreement this week to allow more DNA testing in
the 1993 triple murder for which he was sentenced to death.

The lawyers signed an agreement that allows more advanced DNA testing
on samples of carpet from the crime scene, hair found on one of the
victims' hands, and blood from Skinner and the other two murder
victims.

And:

A first round of testing in October 2012 did not produce DNA that
bolstered Skinner's innocence claims. State lawyers said that those
results — including his blood on the handle of a knife from the crime
scene — further implicated Skinner. The inmate's lawyers said then that
the DNA testing was incomplete and that it indicated that another person
may have been at the murder scene.

A second round of testing was completed in February, and prosecutors and
defense lawyers again have differing views of what the results reveal
about Skinner's role in the crime. In a second advisory, filed with the
Texas Court of Criminal Appeals on Tuesday, prosecutors in the AG's
office said the tests "produced no exculpatory evidence." Nonetheless,
prosecutors said, they agreed to additional testing.

Rob Owen, an attorney for Hank Skinner, issued the following statement:

"Once again, the Attorney General has chosen the troubling tactic of releasing DNA test results in the form of an argumentative and partisan ‘advisory’ to the trial court. This ‘advisory’ works hard to explain away the undisputed and potentially exculpatory fact that a sample from the bedroom occupied by victims Elwin Caler and Randy Busby has been found to contain a mixture of their DNA with that of an unknown person. That person is not Mr. Skinner, and could well be the assailant who murdered the brothers and their mother Twila Busby.

“Texas law requires that the trial court allow the parties to develop the significance of the DNA test results at a hearing in open court, and expects the trial court to consider the evidence and make its findings based on that presentation. The hearing required by Texas law is yet to be scheduled because all DNA testing in Mr. Skinner’s case is not yet complete. The Attorney General’s effort to short-circuit that reasoned consideration of Mr. Skinner's case -- through the premature filing of piecemeal pleadings in advance of the reasoned review contemplated by Texas law -- creates a strong risk of unfair prejudice.

"It is particularly hard to understand how the Attorney General could file this biased 'advisory' the same day that he acceded to mitochondrial DNA testing of certain crime scene evidence in Mr. Skinner's case. That DNA testing -- to be undertaken pursuant to an agreement of the parties filed with the trial court today -- could help confirm that Mr. Skinner is innocent. Until it is completed, no one should draw any conclusions in reliance on the Attorney General's premature and one-sided effort to prejudice the fact-finding process."

Wednesday, 06 March 2013

That's the title of Pamela Colloff's latest article for Texas Monthly. Here's the sub-head: A Brownsville construction worker named Manuel Velez was sent to death row in 2008 after he was convicted of killing his girlfriend’s baby. Five years later, new testimony from a number of forensic experts suggests that the medical evidence against Velez was deeply flawed.

Colloff's 2010 TM article, "Innocence Lost," brought critical attention to the case of Anthony Graves. He was exonerated shortly after her article appeared.

Here's the beginning of her reporting on Manuel Velez:

When a child dies from suspected abuse or assault, law enforcement
officers typically focus their investigation on the last person who was
with the victim. This is logical reasoning; but recent developments in
forensics have shown that a child’s fatal injuries could actually have
been inflicted hours, days, or even weeks before he or she is rushed to
the emergency room. The evolving science of head trauma, for example, has upended long-held beliefs about “shaken baby syndrome” and has recently resulted in a number of exonerations of people convicted of murdering children.

At least three women in Texas have had their cases thrown out or convictions reversed
when misinterpreted medical evidence was re-evaluated. And the case of
Manuel Velez is now drawing attention for the same reasons.

Just over a year ago, in January 2012, Texas Governor Rick Perry marked a
gruesome milestone: with 239 executions under his belt, he had
officially overseen half of all executions carried out in that state
since the reinstatement of the death penalty. Since then, Texas has
killed fourteen inmates, solidifying Perry’s position as the governor
who has presided over the most executions in history. To date, 492
prisoners have been put to death since the state’s death chamber roared
back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.

Amid so much state-sanctioned killing there is scant official
acknowledgment that the state’s capital punishment system is fraught
with problems. As the body count rises, nagging evidence points to the
possibility that Texas has executed at least one innocent person, and
may be poised to kill more. The arson-murder case of Cameron Todd
Willingham, killed in 2004, is the best known, but there are many other
cases that raise serious questions about the guilt of people on Texas’
death row.

As it moves down the roster of executions scheduled for this year,
the state is perilously close to adding another name to its list of
potential innocents: Larry Swearingen, whose case highlights a growing
tension in Texas between science and the law. Add to that conflict the
all-too-familiar problems of prosecutorial bias and tough-on-crime
politics, and you’ve got a recipe for wrongful conviction that, when
death is involved, can’t ever be remedied.

Thursday, 14 February 2013

The Austin Chronicl reports, "Where's Your Evidence? Advances in forensic science have made physical evidence increasingly crucial in criminal justice – but the practice of preserving and maintaining that evidence is often underfunded, poorly managed, or just plain sloppy. It's by Jordan Smith. Here's the beginning of this detailed, must-read:

For more than a decade, lawyers for death row inmate Hank Skinner
fought prosecutors – in Gray County and the attorney general's office –
for the right to DNA-test certain items of evidence. Skinner was
convicted and sentenced to die for the 1993 murder of his girlfriend
Twila Busby and her two grown sons in the home they shared in the
Panhandle town of Pampa. The crime scene was bloody – Busby was
bludgeoned, her sons repeatedly stabbed – and while some DNA tests have
been performed, there was plenty of evidence that hadn't been tested,
including a sweat- and blood-stained windbreaker. The jacket is crucial,
attorney Rob Owen has argued; found next to Busby's body, the tan
snap-front jacket resembled one regularly worn by Busby's now-deceased
uncle Robert Donnell, who the defense claims was obsessed with Busby and
may have been her real killer. In short, testing the jacket might help
prove Skin­ner's innocence – or confirm his guilt.

On June 1, 2012, the state finally dropped its opposition
to the testing. Just two weeks later, Owen was again frustrated when
the AG's Office informed him that the windbreaker was missing.
"According to the state, every other piece of evidence in this case has
been preserved," he said at the time. "It is difficult to understand how
the state has managed to maintain custody of items as small as
fingernail clippings, while apparently losing something as large as a
man's windbreaker."

No one seems to know when or how the jacket went missing. The Pampa
Police Depart­ment, which investigated the murders, originally held all
of the evidence related to the case. When the time came for Skinner to
be tried, the evidence was handed over to Gray County. Some time after
Skinner was tried, the jacket simply disappeared – and no one knows
where it went, said Gary Noblett, a 41-year veteran of the Pampa PD and
custodian of its evidence and property storage. Over the years, he said,
a number of law enforcement types have called looking for it –
including officials with the AG's Office. "As far as I know of, no one's
ever been able to find that thing," he said. Skinner remains on death
row as DNA testing on other items of evidence continues.

Skinner's case is not unusual. Unfor­tun­ately, missing evidence is
"way more common than you'd think," says evidence expert John Vasquez.
Vasquez worked in property and evidence management for 25 years, first
for the military and then for the Fort Worth and Wichita Falls PDs,
before starting his own evidence-control consulting business.

Francis Newton was executed in 2005, following a 120 day reprieve ordered by Governor Perry to allow for forensic testing of evidence. The evidence had been stored improperly, however, and was contaminated.

Many observers believe that the large number of exonerations in Dallas County is due, in part at least, to the County's methodical preservation of biological evidence.

Tuesday, 05 February 2013

Advocates are backing a renewed push to streamline the appeals
process for those who were convicted based on science that has since
been discredited.

Senate Bill 344, filed Monday by state Sen. John Whitmire,
would establish a statute expressly allowing Texas courts to overturn
convictions in cases where the forensic science that originally led to
the verdict has changed. Though the bill has failed twice before,
Whitmire said that several recent Court of Criminal Appeals decisions
may make it more likely to pass, and that prosecutors who have opposed
it in the past should come around. “Why wouldn't we want to find out
there's flawed evidence based on new science?" he said.

Currently,
people convicted of a crime in Texas can submit a writ of habeas corpus
to the Court of Criminal Appeals, in which they ask for a new trial
based on evidence that was not available when they were originally
convicted. If the science used to convict them has changed, there is no
special guideline allowing the court to grant them a new trial, and the
judges often disagree about whether to do so.

Supporters of the
bill point to the history of DNA testing as an example for why the
change is needed. In 1998, the Court of Criminal Appeals denied a new
trial to Roy Criner,
then serving 99 years for a rape and murder, even though new DNA
evidence suggested that Criner was innocent. Then-Gov. George W. Bush
pardoned Criner in 2000, and in 2001, the Legislature created Chapter 64 of the Code of Criminal Procedure, which streamlined the process for new testing of DNA.

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.